State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kelly v. Dunkin’ Donuts

CASE NO. 4621 CRB-4-03-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 5, 2004

MARIA KELLY

CLAIMANT-APPELLEE

v.

DUNKIN’ DONUTS

EMPLOYER

and

CENTURY WORKERS’ COMPENSATION CLAIMS

INSURER

RESPONDENTS-APPELLANTS

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Michael Heffernan, Esq., Heffernan & Heffernan, 295 Main Street, West Haven, CT 06516-7344.

The respondents Dunkin’ Donuts and Century Workers’ Compensation were represented by Andrew J. Hern, Esq., One Congress Street, Hartford, CT 06114.

The respondents Dunkin’ Donuts and Travelers Property & Casualty were represented by Christine DeFilippo, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

This Petition for Review from the January 24, 2003 Finding and Award of the Commissioner acting for the Fourth District was heard August 29, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents Dunkin’ Donuts and Century Workers’ Compensation Claims (Century) have petitioned for review from the January 24, 2003 Finding and Award of the Commissioner acting for the Fourth District. Their appeal challenges the trier’s reassessment of the medical evidence in the record following a remand order by this board. We find no error, and affirm the trial commissioner’s decision.

In an August 3, 2000 Finding and Award, the trial commissioner found that the claimant sustained an accepted October 6, 1997 right shoulder/right elbow and carpal tunnel injury, and an accepted January 19, 1999 slip-and-fall injury to her cervical, thoracic and lumbar spines, right shoulder and right elbow. Both injuries befell the claimant during the course of her employment at Dunkin’ Donuts, but different workers’ compensation insurers were on the risk for the two injuries: Travelers for the first, and Century for the second. A treating physician, Dr. Cambria, stated that the claimant’s January 1999 injury caused an acute thoracic strain, right shoulder strain, chronic lateral epicondylitis, and chronic impingement syndrome of the right shoulder. In a March 11, 1999 report, he offered the opinion that 99% of the claimant’s right shoulder and right elbow symptoms were due to the 1997 injury. The trier explicitly found this report persuasive, along with some of the reports and testimony by Drs. Kramer and Aversa, who were also treaters. He then ordered Century to assume liability for the instant claim pursuant to § 31-299b, with the right to seek apportionment against Travelers for 99% of all payments made on the right shoulder and right elbow.

Travelers appealed the trial commissioner’s decision to this board. We first affirmed the trier’s finding that the claimant’s elbow injury was an aggravation of previous symptoms rather than a completely new injury. In so doing, we cited his reliance upon the aforementioned report of Dr. Cambria, which supported the notion that most of the claimant’s symptoms and her need for pain management were due to her original shoulder and elbow problem. “Although other medical evidence might support a different etiology of the claimant’s elbow condition, it is not the job of the Compensation Review Board to second-guess the factual determinations of the trial commissioner.” Kelly v. Dunkin’ Donuts, 4278 CRB-4-00-8 (Nov. 1, 2001).

Next, we addressed Travelers’ challenge to the trial commissioner’s authority to order apportionment pursuant to § 31-299b. Noting that § 31-299b apportionment is limited to occupational disease and repetitive trauma cases in which a single injury occurs over a time continuum, we held that the instant claim was not covered by the statute, as it involved two discrete and identifiable injuries. However, when we attempted to reach the issue of common-law apportionment—a doctrine whose legal viability was still open to question at the time—we discovered that the record contained insufficient evidence to establish a causal basis for such a possible division of liability.

A close look at [the March 1, 1999 medical report] discloses that Dr. Cambria did not describe the effects of the injury in terms broad enough to justify a blanket apportionment of 99% of all payments made by Century on the right shoulder and right elbow. Rather, he was careful to state that the claimant’s need for pain management was for ‘chronic complaints of shoulder and elbow pain and not for this recent aggravation,’ while her two weeks of lost time following the January 19, 1999 injury were occasioned by ‘her recent aggravation and not her ongoing complaints.’ Respondents’ Exhibit 3. Based upon this evidence, one could find that Century was liable for two weeks of total disability benefits for the recent aggravation, while Travelers was responsible for the claimant’s continuing medical treatment for the ongoing shoulder complaints, and possibly any future shoulder and elbow problems. One could not conclude, however, that an indefinite apportionment arrangement was proper based on shared liability for the claimant’s ongoing symptoms. As the trier appears to have based his conclusion on apportionment solely on such an interpretation of this report, we must remand this case to him so that he may reconsider the question.

Accordingly, the case was sent back to the commissioner for further proceedings.

On remand, the trial commissioner incorporated many of his prior findings into the follow-up decision. He did not reaffirm the finding concerning Dr. Cambria’s March 11, 2001 medical report. Instead, he revised his findings by stating that this report was found not to be credible and persuasive with regard to the doctor’s 99% attribution of the claimant’s right shoulder and elbow symptoms to the 1997 injury. Substituted in its place was a straightforward finding that the claimant injured her upper back, right shoulder and right elbow on January 19, 1999, with an acute thoracic strain, chronic lateral epicondylitis, and right shoulder strain and impingement syndrome having resulted from that injury, pursuant to another of Dr. Cambria’s reports. In conjunction with reports by Dr. Aversa and Dr. Kramer, the trier found that Century was responsible for all of the claimant’s January 19, 1999 injuries, and ordered them to pay benefits accordingly. Travelers was expressly released from any liability. The instant appeal ensued.

In claiming error to this board, Century contends that the trial commissioner was not free to reassess the credibility of Dr. Cambria’s March 11, 2001 report, and that he strayed from the parameters of our remand order. Because the trier relied on the Cambria report in his first decision, and this board subsequently affirmed his reliance on that report for the purpose of characterizing the claimant’s 1999 injury as an aggravation rather than a completely new injury, Century contends that the trier was bound to respect that finding as the law of the case. “Clearly the CRB repeatedly upheld the trial commissioner’s reliance on Dr. Cambria’s opinion in this report. . . . The mandate of the CRB [on remand] was clear: the trial commissioner was to reconsider the issue of apportionment in light of the closer reading of Dr. Cambria’s report by the Compensation Review Board. Instead, the trial commissioner addressed the remand by reversing himself on a finding specifically upheld by the CRB. This effectively resulted in overruling the opinion of the Compensation Review Board.” Brief, p. 5.

As the appellants have observed, the opinion of an appellate court, or an appellate body such as this board, establishes the law of the case upon a retrial or a remand for articulation, insofar as it is applicable. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293 (1999). In carrying out a remand order, a trier of fact “is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed.” Halpern v. Board of Education, 231 Conn. 308, 311 (1994); Patron v. Konover, 43 Conn. App. 645, 650-51 (1996). Still, remand orders need not be construed so narrowly as to prohibit the trier of fact from considering matters relevant to the issues upon which further proceedings have been ordered, even if those matters were not envisioned at the time of remand. Higgins v. Karp, 243 Conn. 495, 503 (1998); Halpern, supra, 313.

In analyzing the commissioner’s decision on remand, we must begin by acknowledging that the controlling law regarding apportionment has significantly changed since our decision in Kelly. At the time of that decision, a common-law apportionment theory was still arguably viable in this forum under Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952)(Supreme Court allowed apportionment between two insurers where two separate back injuries were found to be “equal, concurrent and contributing causes” of claimant’s disability, with the second injury having been “superimposed upon and an aggravation of the condition remaining from the first injury”). A remand to resolve the facts concerning apportionment was thus necessary in Kelly, as the issue had arisen on appeal, and we could make no decision without further findings.

Shortly after issuing the Kelly opinion, this board decided the case of Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (Dec. 19, 2001), in which we ruled that § 31-349 does not permit a common-law apportionment of liability for ongoing disability benefits in cases involving two separate injuries. That ruling was affirmed by our Supreme Court, which disavowed the existence of common-law apportionment in our caselaw for separate and distinct second injuries. Hatt v. Burlington Coat Factory, 263 Conn. 279, 306 (2003). The Court also affirmed our holding that § 31-299b applies only to single instances of occupational disease or unified periods of repetitive trauma, neither of which describes the pair of injuries that befell the claimant here. Id., 312-17.

As such, the legal landscape surrounding this case has evolved. The option of common-law apportionment is now unavailable in this context, and there is no need to make a determination of that issue. Instead, we must consider whether the second injury measurably contributed to the claimant’s disability of the right upper extremity. As we noted in Kelly, an “aggravation” is a separate and identifiable injury under the Workers’ Compensation Act. Rather than being akin to a recurrence under § 31-307b C.G.S., an “aggravation” in legal parlance signifies the intervention of a proximate cause that plays a role in worsening the effects of a prior injury, with benefits payable by the employer for whom the claimant is working at the time of the aggravation. See Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996)(where medical testimony stated that chemical exposure aggravated a pre-existing respiratory condition, trier was required to interpret doctor’s use of the term “aggravating” as establishing injury within meaning of § 31-275(1)(D)); Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 271, 1393 CRB-2-92-3 (Nov. 18, 1993). Under current law, therefore, the trial commissioner would have had to find that the claimant’s January 19, 1999 injury was unrelated to her right shoulder symptoms in order to relieve Century of liability for that injury.

The instant appeal is essentially based on that premise. In Century’s view, the effects of the January 19, 1999 injury with regard to the right upper extremity were insignificant and of little consequence in comparison to the 1997 injury, as per Dr. Cambria’s report. It is presumed by the appellants that liability would then revert to Travelers, the carrier liable for the 1997 injury. Such a result is not self-evident.

Even though the relative percentage of responsibility for the claimant’s symptoms seems dramatically skewed, a 99% to 1% apportionment of symptoms would still involve the recognition of an identifiable second injury under § 31-349, which requires that the employer or insurer retain responsibility for “a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone . . . .” Neither § 31-349 nor the language of the Hatt decision makes an exception for cases in which the first injury is much more serious than the second injury. See Levanti v. Dow Chemical Co., 218 Conn. 9, 18-19 n.8 (1991)(Court explained that, in hypothetical situation where claimant has preexisting 50% permanent back impairment and sustained a 1% additional impairment as result of subsequent injury, case would be eligible for transfer to Second Injury Fund under § 31-349). Furthermore, even though Dr. Cambria’s opinion stated that the claimant’s need for ongoing pain management was attributable to the earlier injury, he still placed responsibility for her two weeks of lost time on the 1999 injury. This is indicative of a meaningful and substantial shoulder and elbow aggravation, though it also creates ambiguity regarding the permanent impact of that injury.

In our previous decision, we remanded this case to the trial commissioner so that he could “reconsider the question” of apportionment, because the report he had relied on did not contain sufficient information to allow for a resolution of that issue. The concept of apportioning benefits presupposes multiple injurious exposures combining to produce one disability. Dr. Cambria’s March 11, 2001 report merely stated that the claimant’s need for pain management was due to her chronic condition and not to the recent aggravation, while the reverse was true of her two weeks of lost time. Dr. Cambria’s opinion on overall apportionment was not completely clear. Our decision contemplated that the trier would need to go beyond this report if the possibility of apportionment was to be meaningfully addressed, and no restriction was placed on the evidence that the trier could consider in making this determination.

Insofar as the trial commissioner retracted his earlier finding regarding the credibility of Dr. Cambria’s report on remand and turned instead to other evidence, we draw the following line. We agree with Century’s argument on appeal to the extent the trier was bound to respect his earlier finding that, based on Dr. Cambria’s report, the claimant’s injury was an aggravation of her previous condition, rather than a completely new injury unrelated to the incident of October 6, 1997. That issue was not before the trier on remand, and could not be reconsidered.

However, neither that finding nor the trier’s reliance on Dr. Cambria’s report for that purpose translated into a requirement that the trier stay within the boundaries of that report in assessing a 99% to 1% division of responsibility between the first and second injuries. This board has already found said report to be ambiguous in its discussion of that issue. Likewise, the trier was not required to read our example of a finding the report potentially could support, i.e., an assignment of liability to Travelers for continuing medical treatment and to Century for two weeks of total disability benefits, as a mandate to so interpret the report, or to rely on it in determining apportionment. In reviewing a trial commissioner’s decision, this board does not consider medical testimony and then instruct the commissioners to make specific factual findings based on that testimony.

Instead, the trial commissioner was entitled on remand to reconsider all of the evidence relevant to proportional responsibility for the claimant’s disability, and to reach a conclusion consistent with that evidence and his other findings, as well as the law at the time of his ruling. That he appears to have done. The trier relied on contemporaneous emergency room records from Griffin Hospital that described the claimant’s January 19, 1999 injury as a direct blow to her right elbow, along with reports from subsequent visits to the hospital that reflect worsening arm symptoms. Claimant’s Exhibit D. He also cited reports of Dr. Kramer and Dr. Aversa that reflect continuing symptoms following the claimant’s January 1999 fall. Claimant’s Exhibits A and D; see also, Deposition of Dr. Aversa, Claimant’s Exhibit E, pp. 35-38 (opining that claimant initially suffered from shoulder and carpal tunnel symptoms due to overuse at the workplace, then injured her right upper extremity on January 19, 1999, which led to the onset of ulnar nerve symptoms that had not previously manifested). It was the trial commissioner’s prerogative to weigh this evidence, and to infer from it that the claimant’s January 19, 1999 injury had some involvement in her ongoing disability of the upper right extremity. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). We cannot substitute our own inferences for those of the trier on appeal, regardless of whether we would draw the same conclusion from that evidence. Id. As such, we have no cause to reverse the trier’s ruling that Century is responsible for the right upper extremity aspect of the claimant’s injuries.

The trial commissioner’s decision is accordingly affirmed.

Commissioners James J. Metro and Howard M. Belkin concur.

Workers’ Compensation Commission

Page last revised: May 6, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4621crb.htm

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